Judgment

SHAJ, J.:- Kapurchand Shrimal-a Hindu undivided family- committed default in payment of income-tax due by it for the assessment years 1955-56 to 1959-60. The Income-tax Officer Special Investigation Circle, Hyderabad, issued certificate on June 16, 1959, under Section 46 of the Income-tax Act, 1922, for recovery of tax due by the family. Pursuant to the certificate, properties of the Hindu undivided family movable and immovable and outstandings were attached for realizing the tax dues.

2. In exercise of the powers conferred by Rule 76 of Sch. II of the Income-tax Act, 1961, the Tax Recovery Officer directed on August 10, 1965, that Kapurchand Shrimal manager of the family be detained in civil prison for fifteen days. The manager then moved a petition in the High Court of Andhra Pradesh against the order of detention. The petition was rejected by a single Judge of the High Court holding that the manager had, in contravention of Rule 16 (2) of Sch. II of the Income-tax Act, 1961, dealt with the properties of the family after receiving notice of the issue of the tax recovery certificate. In appeal against that order, the manager applied for leave to raise the contention that where a Hindu undivided family had committed default in payment of the tax, its Karta not being the assessee against whom the certificate is issued, is not liable to be detained for recovery of tax due by the Hindu undivided family. The High Court declined to allow the contention to be raised and held that the manager having acted in contravention of Rule 16 (2) of Sch. II of the Income-tax Act, 1961, the ingredients of Rule 73 were attracted and he was liable to be detained in civil prison. A day before this order was passed the appellant filed another petition under Article 226 of the Constitution challenging the validity of the proceedings against him on the ground that he was not a "defaulter". That petition was dismissed by the High Court holding that the earlier judgment of the High Court operated to bar investigation into the plea raised.

3. Appeals Nos. 1319 and 1320 of 1966 arise out of the orders made by the High Court in the two petitions under Article 226 of the Constitution. The manager was, after the order of the High Court, arrested and sent to prison for six months. The manager then filed petition under Article 32 of the Constitution praying for a writ in the nature of habeas corpus for an order for his release from the custody of the Superintendent District Prison, Hyderabad. In our judgment the claim of the manager that he is not liable to be arrested and detained in prison for failure to satisfy the tax due by the Hindu undivided family in enforcement of the certificate issued under Section 222 of the Income-tax Act, 1961, must be upheld.

4. By virtue of Section 297 (2) (j), notwithstanding the repeal of the Indian Income-tax Act, 1922, any sum payable by way of income-tax, super-tax, interest, penalty or otherwise under the Income-tax Act, 1922, may be recovered under the Act of 1961, but without prejudice to any action already taken for the recovery of such sum under the repealed Act. Proceeding could therefore be taken for recovery of the tax due for the assessment years 1955-56 to 1959-60 by the Hindu undivided family under the Income-tax Act of 1961. Section 220 of Act 1961 deals with payment of tax and the conditions in which an assessee may be deemed to be in default. Under the Act tax assessed has to be paid within thirty five days of the service of a notice of demand: if the amount is not paid within the time limited at the place and to the person mentioned in the said notice the assessee shall be deemed to be in default. Section 222 provides for the issue of certificate to the Tax Recovery Officer. It provides, in so far as it is material:

"(1) When an assessee is in default or is deemed to be in default in making a payment of tax, the Income-tax Officer may forward to the Tax Recovery Officer a certificate under his signature